Weekly Case Summaries: October 28, 2011

Texas Court of Appeals

Issue:

Did an officer's affidavit in support of an application for search warrant, which included facts of a "controlled buy" of cocaine occurring at the front door of the house, support an inference that additional narcotics would be found in the residence?

Holding:

Yes. Although the officer did not witness the transaction, additional facts and reasonable inferences drawn from them established a fair probability that additional illegal drugs continued to be stored at the residence. The totality of the facts in the affidavit sufficiently established probable cause justifying the issuance of the warrant.Read Opinion

Commentary:

This is the second time that a court of appeals has overturned this trial judge's ruling on the sufficiency of a narcotics search warrant affidavit. The facts are not that unusual or groundbreaking. But read this opinion anyway, especially if you have a hearing on a narcotics search warrant. This is a thorough and well-written opinion, and it addresses many of the arguments that defendants raise in challenging such search warrant affidavits.

Issue:

Was a jury charge that allowed the jury to convict for intentionally or knowingly causing death by asphyxiation by manner and means unknown to the grand jury erroneous because the evidence at trial was insufficient to establish that the manner and means was unknown?

Holding:

Yes. Following Sanchez v. State, No. PD-0961, 2010 Tex. Crim. App. LEXIS 1242 (Tex. Crim. App. Oct. 6, 2010) (reh'g pending), the instruction should not have been included in the charge. After all of the evidence was in, there was a known choice of several options for manner and means. Thus, these options should have been submitted to the jury because the manner and means was not entirely unknown.Read Opinion

Commentary:

For over one year now, the motion for rehearing of the decision of the Court of Criminal Appeals in Sanchez has been pending. If ever there was better evidence for why that decision needs to be overturned, it is this case. I am a little puzzled that the court of appeals relied so heavily upon Sanchez, even though it is not yet final. In any event, in this case, the State alleged that the victim's death was caused by strangling or drowning or by asphyxiation by some unknown means. The medical examiner testified, that while she believed that the victim's death was caused by asphyxia, the means "[c]ould be drowning, could be strangulation, could be suffocation. We can't specifically pick which one, because when you deal with an asphyxial type death, the findings are very subtle." How can the State possibly be faulted for alleging that the manner of asphyxiation might have been unknown based upon that testimony? The court of appeals itself admitted, "Given the state of the evidence, the means which caused [the victim's] death is unclear." And how could the defendant possibly be harmed, as the court of appeals held that he was? Sanchez is remarkably confusing, and it must be overturned, as must this decision.

Issue:

Did the trial court properly exclude evidence of an alternative perpetrator?

Holding:

Yes. While the proffered evidence had some relevance, the defendant failed to show that the proffered evidence was sufficient—on its own or in combination with other evidence in the record—to show a nexus between the crime charged and the alleged alternative perpetrator.Read Opinion

Dissent:

The evidence here reveals a sufficient nexus to allow this evidence to be presented.

Commentary:

Pay attention to this case to see if it captures the attention of the Court of Criminal Appeals. Alternate perpetrator evidence is often quite compelling to appellate courts, and they are often reluctant to uphold the exclusion of evidence in support of a defendant's defense. This holding is entirely in line with the prevailing case law, but just keep your eyes open.

Issue:

Did the trial court correctly permit the defendant to go to trial, under the Interstate Agreement on Detainers Act, where both the State and the out-of-state defendant requested that the defendant be returned to Texas for trial?

Holding:

Yes. Although the issue was not preserved, the act's provisions should be liberally construed and the defendant went to trial within 180 days (rather than 120 days required on a State's request).Read Opinion

Concurrence:

Yes, because the other state acted on only the defendant's request.

Commentary:

Since the issue was not preserved, I would not anticipate any action on this case on petition for discretionary review. But since IADA decisions are so rare, it could be helpful that the court of appeals also addressed the merits. The likelihood of both the State and the defendant making a request for a detainer may be rare, but it is a good opinion to have if the issue comes up.

Texas Attorney General

Issue:

Must a prosecutor obtain the approval of the presiding judge before advancing funds for travel expenses to a nonresident witness?

Opinion:

No. CCP art. 35.27 does not require a county to obtain judicial preapproval before advancing funds to a nonresident witness for travel expenses. Whether a district attorney may advance such funds is a matter of policy for the county to determine.Read Opinion

Request:

Regarding the approval of expenditures from the asset forfeiture fund of a district attorney.Read Request

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